May 27, 2009
Column #1,448
Advance for May 30, 2009
A Defeat for Same-Sex Marriage
By Mike McManus

The liberal California Supreme Court, which issued a ruling legalizing same-sex marriage only a year ago, reversed itself and upheld, by a 6-1 vote, the constitutionality of Proposition 8, which added this sentence to the state's Constitution: "Only marriage between a man and woman is valid or recognized in California."

However, it also ruled that the 18,000 same-sex couples who "married" between May and the passage of Prop 8 in November, remain valid. Clearly, the court ignored the plain meaning of the amendment which it declared constitutional in the same decision.

Nevertheless, some feared that the court which had overturned a referendum in which Californians voted 61% against counterfeit marriage in 2000 - would do so again.

In this week's decision, the Court said its role is "limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our personal beliefs and values."

Sounds noble, but if the court had really set aside its personal beliefs, it would not have grandfathered in the 18,000 same-sex unions performed last year. 

That exemption for existing marriages is "a ticking time bomb" that could give a federal court a way to declare Prop 8 a violation of the U.S. Constitution, asserts Family Research Council President Tony Perkins. "You have people in the same state being treated differently, so you have an equal protection clause challenge in the making." 

In fact, the intent of the court may well have been to issue a contradictory opinion that it knew could eventually wind up in the U.S. Supreme Court.

Why didn't the California Supremes simply vote to overturn the Constitutional Amendment?  In that state, the public can vote to "recall" judges who they think have acted improperly. Prop 8 supporters openly talked about such an action, had the vote of seven million Californians on the Constitutional Amendment been ignored by the court.

In the three months since the case was argued, three more states have legalized same-sex marriage, joining Massachusetts and Connecticut, which had already done so.

On April 3, the Iowa Supreme Court voted unanimously to strike down a state law that limited marriage to couples of the opposite sex.  It cited the earlier California Supreme Court ruling 4-3 to overturn the 2000 referendum.

Within a week, the Vermont Legislature voted narrowly to override a governor's veto of gay marriage legislation. Maine passed a same-sex bill on May 6, which was quickly signed by the governor.

However, California Supreme Court's endorsement of traditional marriage demonstrates a new court respect for the power of the people on this issue.  When the public is given a voice, it always opposes gay marriage, as it did twice in California, a determination that would have led to the recall of Justices who dared flout public will.

A poll by CNN/Opinion Research April 23-26 found that 54 percent of voters say same-sex unions should not be recognized vs. 44 percent who said they should be legal.

Therefore, the National Organization for Marriage is working hard to overturn Maine's decision by putting gay marriage on the ballot in November, which now appears likely. I predict that like California, Maine voters will demonstrate that the public does not consider same-sex unions to be marriage.

NOM's tactics differ in each state.   In the Democratically controlled New Hampshire Legislature, the issue has been debated for four months. NOM placed three phone calls to each household, warning that if gays won, religious liberties would be threatened.  NOM was proven right when a same-sex bill that contained expanded religious protection was defeated by 188-186.  Backers of gay marriage refused to compromise, though Gov. John Lynch said he would sign a bill with that protection.

Maggie Gallagher, President of the National Organization for Marriage, who is also a syndicated columnist, blames the press for not covering the issue in New York, where State Sen. Reuben Diaz of the Bronx, and a Democrat, a surprising leader of traditional marriage - has gotten little visibility.

Her answer: ads will be running this weekend on a big screen in Times Square and in the home districts of key legislators.

       "We had to bypass the media and go directly to voters," she asserted.

       However, on the day after California's Supreme Court's decision, an unlikely pair of lawyers, two men who represented opposing sides in the Bush v. Gore case, former U.S Solicitor General Ted Olson and David Boies, announced a federal law suit to take the Prop 8 case to the U.S. Supreme Court, claiming gays have a "right" to marriage.

       There's no rest for the weary.